ishment (it can justify harsh or degrading punishments, or punishments
of the innocent) disappear once we point out that the type of consequen-
tialism I defend includes the protection of dignity and non- humiliation
as among the most fundamental “consequences,” since these embody
entitlements of citizens based on justice.44 They are thus among the cen-
tral components of the consequences to be promoted; so too are political
affiliations expressive of (political) trust and equal respect.45 Bentham had a hard time with these questions, though he struggled valiantly to show
that public utility was not promoted by harsh punishments, or punish-
ments of the innocent. My view (rather like Mill’s, I think) makes this a
nonissue from the start. The feeling that Utilitarian views make too little
room for the acknowledgment of wrongdoing is also removed by my
account, in which the acknowledgment of culpability is central (though
I don’t say “desert,” because it remains an open question exactly what
treatment is the appropriate response to culpability).
Is truthful acknowledgment valuable intrinsically, or only instru-
mentally? A view of my type could go either way. I am inclined to think
that the most important issues are instrumental. A system in which truth
is an important value promotes the protection of important human enti-
tlements better than one that does not care so much about truth— above
all because truth in these matters protects well- being and promotes trust,
both between citizens and between citizens and the government. Because
trust is a central issue in revolutionary justice, and pertinent to the role of truth commissions, I shall say no more about it here, but take it up again
in chapter 7.
My account of social welfare, then, requires any governmental use
of coercion to satisfy very demanding constraints: it must be compat-
ible with equal dignity and non- humiliation, it must be accompanied by
public acknowledgment of the seriousness of wrongdoing, and it must
be justified to the person involved as only one part of a much more com-
prehensive project in which we reasonably aim to promote social welfare.
Often the aim of reform will help us to justify the use of coercion. But it is permissible, too, to say to the offender, “We are removing your liberty for
a time for the sake of the public welfare, promoting good for the society
of which you are a part.” It seems to me that, if incarceration really were
humane and respectful, not disgusting, violent, and an offense to basic
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dignity, there would be no more difficulty justifying it than there would
be in justifying fines or community service— nor, indeed, more than in
justifying taxation, or military conscription, which are unpleasant costs
paid by many for the sake of the welfare of all. Anti- Utilitarians typically do not hold that taxation uses people as mere means to social welfare,
unless they espouse an extreme form of libertarianism that is uncommon.
A decent society is entitled to use coercion to get people to make needed
contributions to the general well- being. And we can certainly say that the
reason we have chosen you for this particular lot, incarceration (rather
than, say, for a fine), is that you have been convicted of a dangerous type
of wrongdoing.46 If this is retributivism, make the most of it. But of course the state’s interest here is in incapacitation and deterrence, not in some
alleged cosmic suitability of incarceration as proportional payback for
certain offenses. It never says that we are making you pay, or that you
are getting what you deserve, or that your suffering balances or is pro-
portional to or atones for the harm you did. These assertions, which my
state eschews, are rightly regarded as essential characteristics of even a
non- vindictive retributivism.47 We may, on the other hand, say that one
reason we assign a given punishment is to make a statement of commit-
ment to our fundamental political principles, which is at the same time
an acknowledgment of the importance of the equal dignity of all citizens.
Such statements would be cheap talk if punishing were all we were doing
about the problems of crime; but the nation I imagine will be pursuing a
wide range of intelligent strategies.
IV. Non- Anger and the Criminal Law
By the time we reach crime and the criminal justice system, we have
already missed the most significant opportunities for social improve-
ment. The criminal law system, and “punishment,” are a fallback mecha-
nism, in turning to which we admit a degree of failure in other strategies
for prevention and deterrence. It’s only if we convince ourselves that cer-
tain people or groups are hardwired to be and do evil that we can feel
comfortable about turning to the criminal law for help with a social prob-
lem. In chapter 7, indeed, we shall see that even people who seem as evil
as can be, for example the Afrikaners who administered the evil system
of apartheid, do contain the capacity for good, and if they are approached
in that spirit, rather than sternly held to account, they may become
cooperative and productive citizens. Our discomfort, indeed, should
infuse our thought about the criminal law.
Beyond this point, I must become vulnerable to the same criticism
that one might level at Bentham’s Principles: for, instead of taking on the
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whole job of thinking about crime prevention through all the devices
available to government (including education, nutrition, social security,
non- discrimination, and much more), I shall simply talk about a few
aspects of the system of “criminal justice” as it currently exists. (Notice,
too, that I do not even talk about the implications of my idea for civil
law— not because there are none, but because my legal knowledge in that
area is insufficient.) The full inquiry that is needed is vast, multidisci-
plinary, and contextual. My account points to the need for that larger
inquiry; but it also has implications for existing institutions in one nar-
row area of the subject. These implications are heterogeneous, and only a
few issues will be treated here, to give a representative sense of what the
theory might offer.
IV.1. The Role of the Victim in Criminal Trials:
Victim Impact Statements
In contemporary trials, anger at criminals has led to the demand for an
organized institutional vent for that resentment. As section V will discuss,
criminal law provides, at the sentencing phase, an institutionalized oppor-
tunity for a sympathetic consideration of the convicted criminal’s entire
life, which may possibly lead to mitigation. But why, then, if sympathy
has its day in court (it is said), should resentment not have equal time?48
Many victims and victims’ advocates maintain that it should, arguing that
victims themselves, or, more often, their families, have a right to appear
and to describe the toll the crime has taken on them. Usually this sort of
request is made in homicide cases, presumably because when the victim is
still there, testimony abo
ut the toll taken by the act can often be admitted
at trial somehow or other. So what is at issue is admitting testimony that
seems unrelated to the actual crime and its actual victim, on the grounds
that friends and family suffer too and should be able to influence the sen-
tencing process. Since the testimony amounts to a venting of anger, it is
not surprising that I am troubled by such proposals. The idea of bringing
the Furies into the courtroom in an unregenerate form is precisely what
the entire spirit of my Eumenidean proposal has set itself against: the
Furies, in entering the state, should be transformed into forward- looking
goddesses who think about the welfare of the community as a whole.
We might say, too, that this procedure is all too like the Athenian
custom of private prosecution, in which the voices of the victims take the
place of an impartial legal institution. Here they do not displace law, but
they certainly deflect it.
Notice that everything relevant to convicting the offender has already
been presented at trial. Assuming O is convicted, the wrongful act has
been acknowledged. Moreover, in setting levels of offense, the effects of
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195
a type of wrongful act on the victim and on the rest of the community
have already been considered, so the victim impact statement is redun-
dant insofar as it is relevant, and simply serves to whip up retributive
emotion. As for deterrence and general welfare, it is not at all clear how
victim impact statements bear on that goal, nor is that what victims are
seeking. Their goal is to express anger and to secure a heavier retributive
punishment for the offender. So their demand has all the problems that
we have already found with retributive accounts, and it has the ongoing
irrationality of anger: expressing anger in public and getting a heavier
sentence for the offender does nothing to bring the dead person back or
to create a better future for this family. Indeed, by prolonging entangle-
ment with the criminal justice system and encouraging fixation, it often
makes the future worse.
We may now introduce two additional problems. The first is that
murder victims don’t all have grieving families. Like Euthyphro’s father’s
servant, they may lack people to take their part. So what victims’ families
are asking is an opportunity to influence the sentence of offender O, in a
way that those of offenders P and Q are not influenced, just because they
are there and are angry. This does not seem like a very persuasive rea-
son: the crime is what it is, and similar crimes should be treated similarly.
A solitary person whom nobody loves is worthy of the same concern as
a beloved patriarch or matriarch. The second problem is that empirical
evidence shows that juries are more likely to bond with people who are
more like them. In a preponderance of cases, victims’ families will seem
more like them than the defendant will, and this extra presence on the
scene will impede them from listening attentively to the defendant.49
A sensible policy would be to address concerns of victims going for-
ward insofar as these are genuinely practical concerns. Where a crime has
removed a major source of income or domestic labor, the family should
be compensated, for example. But victim impact statements are typically
not forward- looking requests for compensation, which would typically
be made in a civil suit. They are typically retributive denunciations,
aimed at getting a harsher criminal sentence for the wrongdoer, and it is
this aspect that should be rejected.
What about the effect of punishment on families of the criminal?50 As
with crime itself, so here: the broad social welfare implications of every
practice must be considered. When thinking about whether incarceration
is a suitable punishment, we should think about its influence on families
and communities, particularly when a large proportion of men in certain
subgroups end up being incarcerated and thus removed from produc-
tive community life. Incarceration for nonviolent offenses (such as drug
offenses) is problematic for many reasons, but one of these is surely the
impact upon the community as a whole.
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In chapter 2 I considered the objection that the anger of victims is
a valuable deterrent to crime. In the context of the criminal trial, that
claim seems particularly flimsy. Will people really be deterred by think-
ing of the (usually unknown) probability that some family members will
come to court and testify? (Maybe they will just be incentivized to kill the
whole family!) There appears to be no good data on perpetrators’ knowl-
edge of the family circumstances of their victims, or of their knowledge
of whether a given jurisdiction allows victim impact statements. It seems
likely that most perpetrators don’t have any idea about these things. The
loss and grief of victims can be highly effective in lobbying for better laws (for example, against child sexual abuse or drunken driving). But that
is quite a different claim from the claim that victim anger in the penalty
phase of a trial deters.
The best that can be said about victim impact statements is that in
some cases they help victims move forward by satisfying their desire
to tell their story. Well, fine, we should be all in favor of narration if
it helps and does no harm. But we must remember that victims have
been raised on narratives of payback, and, more recently, have been led
to expect that they will not achieve “closure” without a narrative that
(typically) denounces the defendant and attempts to secure a harsher
sentence.51 We should not support victims in sating their desire for
payback, with all its problems for fairness to the defendant. Perhaps
we should subsidize a type of trauma counseling for victims based on
confronting what has happened to them and telling their stories to a
group. Such therapies are well known in the treatment of PTSD and
rape trauma. But those therapies do not consist in encouraging the vic-
tim in payback thoughts, nor do they occur in a setting where those
payback thoughts have real- life consequences for someone who has
been tried and convicted already. To be sure, the satisfaction of express-
ing payback wishes is a real satisfaction, but a wise society will not
build criminal law policy on what economist John Harsanyi has called
“sadistic and malicious preferences.”52
But, it will be said, victims need to be heard— and to be heard not just
by a therapist, but by the criminal who wronged them, and in a public
setting. Just as in intimate relations even people who do not wish for
payback still want the party who wronged them to hear and understand, so too with victims of crime. Their sense of their equal dignity in society,
and their trust in social institutions, may even depend upon this sense of
responsiveness. If victim narratives are too prejudicial to include prior
to sentencing, as I believe they are, we might then cautiously consider
an institutional setting for victim narratives a
fter sentencing. Such narra-
tives are likely to remain mostly retributive in content; but they will not
be able to undermine the legal process.53
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197
Notice, however, that the hypothetical victim is imagined as demand-
ing two very different things. One demand is simply to be heard and
understood by the wrongdoer. That demand can be satisfied by my post-
sentencing proposal. The other demand that is usually mixed in with
this is the demand to express retributive denunciations— and usually the
whole point of this demand is to influence the judge and jury. To the
extent that the second demand is the primary one, as I believe it usually
is, victims will not be interested in my post- sentencing proposal.
One very remarkable instance of victim confrontation occurred in
Charleston, South Carolina, when admitted killer Dylann Roof appeared,
at his pretrial bail hearing, before representatives of the nine people he
has admitted to killing in an attempt to start a “race war.” Analyzing the
victim statements in chapter 3, I argued that they express unconditional
forgiveness in an unusually pure form, with no assertion of superiority
and no hint of payback wishes. Such statements, surprising because they
are so unusual, could certainly put a new face on the whole question of
victim impact statements, if a substantial proportion of Americans came
to share the very rigorous view of unconditional love, untainted by ran-
cor, that the Charleston church communicated to its members.
IV.2. Dignity and Shame
One of the more unpleasant effects of unfettered anger is its tendency
to inflict shame or “down- ranking” on others. Anger often, though not
always, focuses obsessively on status or down- ranking, and its wish is
to reverse positions, pushing the offender down below the previously
down- ranked self. As I’ve said, this is the one way in which anger makes
good sense: humiliating the offender really does remove the wrong, if
the wrong is seen as a pure status- injury. Nonetheless, I also said that
it makes a very unpleasant and normatively substandard kind of sense.
Certainly in public life we do not want to encourage obsession with rela-
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